TC0-09531

RAD File / Dossier de la SAR : TC0-09531 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 21, 2021 Date de la décision Panel L. Krajcovic Tribunal Counsel for the person who is the subject of the appeal Harkamal Singh Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Appellant) is a stateless Palestinian who was born in the United Arab Emirates (UAE). He appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. BACKGROUND [3] The Appellant was born and lived his entire life in the UAE. His temporary residence status in the UAE was based on his employment. On June 19, 2018, the Appellant was terminated from his employment and had difficulty finding another job. He extended his status by applying for school but was unable to continue his studies as he could not afford tuition. On XXXX XXXX XXXX 2018, the Appellant travelled to the United States and on XXXX XXXX, 2018, the Appellant entered Canada and filed a refugee claim. [4] The Appellant's refugee claim was heard on January 30, 2020. On July 17, 2020, the RPD rejected the claim on the well-foundedness of the Appellant's fear. The Appellant submits that the RPD erred in its well-foundedness assessment. [5] The Appellant does not request to submit new evidence on appeal. As there is no new evidence admitted on appeal, there can be no oral hearing pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] The RAD applies a standard of correctness for questions of fact, mixed fact and law, and law. The RAD may defer to the RPD in assessing findings involving the credibility of oral testimony if it finds that it had a meaningful advantage in the circumstances.1 In this appeal, I find that the RPD did not have a meaningful advantage. ANALYSIS The RPD's findings [7] The RPD found that the Appellant established, on a balance of probabilities, his identity as a stateless Palestinian man who was born in the UAE. The RPD relied on a certified true copy of the travel document issued to the Appellant by the Palestinian Authority that was seized by Canadian immigration officials when he filed his claim. [8] The RPD found that Palestine was not a country of former habitual residence as the Appellant had never been to Palestine and a travel document is not conclusive evidence of habitual residence. The RPD found that the UAE, where the Appellant was born and lived his entire life prior to his travel to Canada, was his sole country of former habitual residence. The RPD assessed the Appellant's claim in relation to the UAE. [9] The RPD found that the Appellant testified in a straightforward manner and was a credible witness. The RPD reasons state it did not notice any embellishment or exaggeration in his testimony and found it generally consistent with his Basis of Claim form and narrative. [10] At the hearing, the RPD member asked the Appellant why he came to Canada, to which he replied that he felt he had no place to go. The RPD member asked him why he filed a refugee claim, to which he replied that he feels his life is at risk and Canada is the only place that welcomes him. The RPD considered the Appellant's belief that he is at risk stemmed from the fact that he lost his residence status in UAE and that he has no place to go, but found that this concern did not give rise to refugee status. [11] The RPD considered the treatment of foreigners in the UAE. The RPD found that, like all non-citizens, the Appellant was required to have a sponsor to secure his temporary residence permit and that, if his employment contract was terminated, he was required to find a new employer to sponsor his residency or lose his temporary residence status. The RPD found that, as the requirement to have a sponsor to live in the UAE applied to all non-citizens, it was a law of general application with no persecutory intent. [12] The RPD found that there was differential treatment between nationals and foreigners in UAE, however that such restrictions have no correlation with any of the enumerated grounds and apply to all non-citizens. The RPD considered the Appellant's experiences and found that he did not suffer prejudicial consequences as a result of the restrictions placed on foreigners in UAE. The RPD noted that the Appellant attended public primary school, secondary school and university for free in the UAE after which he found gainful employment as an XXXX XXXX. [13] The RPD acknowledged that labour policies in the UAE, namely Emiratisation, made it more difficult for non-citizens to obtain employment, but found that there was no persuasive evidence that the Appellant would be denied the ability to work. [14] The RPD was not satisfied that the Appellant could not find a new employer who would be able to secure a work permit and residency visa for him in the UAE. The RPD found that there was no persuasive evidence that being Palestinian would be an obstacle. The RPD accepted that recent labour law policies have made it more difficult to find employment in the UAE, however found that this was unrelated to any of the five grounds in the Refugee Convention. [15] The RPD found that the Appellant had no legal right of return to the UAE due to immigration requirements based on a law of general application. With regard to allegations of possible detention or mistreatment, the RPD noted that the Appellant's narrative indicates that, if he is forced to return to the UAE without a valid temporary residence visa, he would be detained indefinitely awaiting deportation. The RPD found that, while it is likely more difficult for the Appellant to find work given Emiratisation, which seeks to increase the number of UAE nationals in the job market, there was no persuasive evidence before it that it was impossible to find work. The RPD noted that Emiratisation does not apply to all sectors of the job market. [16] The RPD states: [t]he claimant is concerned that without a valid temporary residence visa, he would be detained indefinitely. However, the onus is on the claimant to secure a sponsor and return to the UAE in a legal manner. The claimant's fear that he would be detained indefinitely is not well-founded. Given the manner by which he must return, the panel finds on a balance of probabilities that he would not be punished for breaking any entry laws, and is unlikely to face detention.2 [17] The RPD also found that the other documentation referred to by the Appellant regarding the detention and incarceration of non-citizens was limited to those critical of the government or considered to be security risks and found that the Appellant did not fit a similar profile. The Appellant's submissions [18] The Appellant submits that the Board mischaracterized his reasons for fleeing the UAE by stating that the Appellant's belief that he would be at risk stemmed from the fact that he lost his temporary status and had no place to go. The Appellant submits that his status in the UAE was based on his employment and that, when he was terminated, he was given thirty days to find new employment or leave the country. Despite the Appellant's best efforts, he was not able to secure new employment. At that time, the UAE government had begun an initiative of "Emiratisation" that deterred employers from hiring foreigners in an effort to nationalize its workforce. [19] The Appellant submits that living in the UAE without status would mean that he would be at risk of being detained, deported or tortured. Therefore, as an act of desperation, the Appellant enrolled in the UAE University in July 2018. He was able to obtain a student temporary residence visa. However, he did not have the resources to pay his tuition fees so knew it was only a matter of time before his student visa would be cancelled. The Graduate Student Affairs Department informed him that he would have to pay his fees within a month or risk his visa being cancelled. In these circumstances, the Appellant knew that he needed to flee the UAE or risk being detained indefinitely. [20] The Appellant submits that RPD erred in stating that the determinative issues were credibility and well-foundedness of his fear. The Appellant submits that this is confusing as the RPD reasons refer to the RPD finding the Appellant credible and his credibility was not further questioned by the RPD. [21] The Appellant submits that the RPD erred by finding that the onus was on the Appellant to secure a sponsor to return to the UAE in a legal manner. The Appellant submits that the RPD was confusingly not satisfied that the Appellant could not find a new employer who could secure a work permit and residency visa for him in the UAE. The Appellant submits that this is confusing because, as testified to, he made numerous attempts to obtain employment after he was terminated from his job and the RPD found the Appellant to be credible in his attempts to find new employment to secure a sponsor. [22] The Appellant submits that the RPD accepted that recent labour law policies made it extremely difficult for non-nationals to obtain employment in the UAE. Therefore, the Appellant submits that it is illogical and legally unfounded for the RPD to find that the onus is on the Appellant to secure a sponsor and return to the UAE in a legal manner. The Appellant submits that the RPD used this flawed reasoning to conclude that, since the Appellant must return to the UAE after finding a sponsor, he is unlikely to be punished for breaking entry laws and therefore unlikely that he would face detention. The Appellant submits that this flawed reasoning led the RPD to incorrectly assess his risk of detention on the speculative assumption that he would have a sponsor, rather than assessing his risk of detention without a sponsor. The RAD's assessment [23] I accept the Appellant's submission that the RPD erred in stating that the determinative issues were credibility and well-foundedness. Contrary to this statement, the RPD found the Appellant to be a credible witness who did not exaggerate or embellish. The RPD reasons do not refer to other credibility concerns. [24] I find that the RPD was correct in determining that the UAE was the Appellant's only country of former habitual residence and in assessing the claim with respect to the UAE. I also find that the RPD was correct in determining that the Appellant faced no serious risk of persecution in the UAE. However, I find that the RPD erred in determining that, on a balance of probabilities, the Appellant would not face a risk of indefinite detention. I find that the RPD erred in determining that the Appellant could likely find employment in the UAE and therefore could return legally and not face detention. [25] The RPD found that the Appellant had no right to return to the UAE, however states it was "not satisfied that the claimant cannot find a new employer who would be able to secure a work permit and residency visa for him in UAE."3 I find this to be speculative as the RPD does not explain how it comes to this conclusion nor refer to any evidence upon which it makes this determination. [26] The documentary evidence is clear that in the UAE, non-citizens must have an employer sponsor their residence in order to legally reside there. I find that the evidence on the record demonstrates that the Appellant is unlikely to find a new employer to sponsor his residence. I have reviewed the transcript of the hearing as part of my independent assessment. At the hearing, the Appellant testified regarding the efforts that he made trying to find a new employer following his termination. He testified that he began searching and applying when he found out that he was terminated, that he applied to more than fifty companies and that, although at first he looked only in his field, he expanded his search and began applying for anything just to stay in the country.4 The Appellant testified that most of the prospective employers replied saying that they did not have any positions available for him or that they only needed UAE nationals.5 The Appellant testified that when he was unable to find a job, he enrolled in graduate studies in order to obtain a student visa, but that he was unable to pay the fees, which would result in the cancellation of his visa.6 [27] As noted above, the RPD member found the Appellant to be a credible witness. The RPD reasons do not refer to any particular credibility concerns regarding the Appellant's efforts to find employment. The RPD reasons acknowledge that the UAE government's Emiratisation initiative makes it more difficult for non-citizens to obtain employment but points out that it does not apply to all sectors. [28] Considering the foregoing, I fail to see how the RPD arrived at the conclusion that the Appellant could likely find an employer to sponsor his residence. According to his testimony, which was found to be credible, the Appellant was unable to secure employment despite significant effort. The difficulty that non-citizens may face finding employment as a result of the Emiratisation initiative is consistent with the Appellant's experience. Although applying for employment is within the Appellant's control, securing such employment is not. Based on the Appellant's unsuccessful efforts to find employment and the impact of the Emiratisation initiative, I find that the Appellant is unlikely to be able to find an employer to sponsor his residence. As a result, I find that the RPD erred in determining that, if the Appellant returned to the UAE, he would not be in violation of entry laws and therefore erred in not assessing his risk of detention upon return. [29] I have reviewed the documentary evidence and find that, if the Appellant were to return to the UAE without legal status, he is likely to face indefinite detention. The report "Immigration Detention in the United Arab Emirates"7 prepared by the Global Detention Project states that UAE law allows for detaining people who have violated immigration laws, including those without status; that detention is prescribed in certain circumstances, including as punishment for violating immigration provisions; that anyone who enters the UAE illegally shall be imprisoned for a period of not less than one month and/or pay a fine, followed by deportation ordered by the court. The report states that the length of time a person can remain in detention as they await removal from the country, can vary widely from a month to more than a year. It states that the factors that can prolong detention include difficulties getting passports or travel documents or, in the case of refugees, waiting until a resettlement country accepts them.8 The report also states that remaining in the UAE without a visa puts a worker at risk of arrest, detention, fines and ultimately deportation.9 [30] The United States Department of State Country Report (US DOS report) on Human Rights Practices states "...any persons lacking legal residency status were technically subject to local laws on illegal immigrants, and authorities could detain them."10 A Response to Information Request of the Immigration and Refugee Board of Canada states that Palestinian refugees whose residency permits have expired and have not been renewed, risk detention by local authorities and potentially deportation.11 The article "Inside Emirati Deportation Prisons"12 refers to people being detained solely due to illegal status and visa violations.13 [31] The article "Inside Emirati Deportation Prison"14 describes the poor conditions in UAE prisons. According to the US DOS report on Human Rights Practices for 2018, prison conditions vary widely and there were instances of overcrowding, long waits for health care access and poor sanitary conditions.15 The report "Immigration Detention in the UAE"16 refers to the 2014 US DOS report stating that there were unconfirmed reports that police and prison guards mistreated individuals.17 It also indicates that the UAE has only ratified half of the core international human rights treaties and has not ratified the main instruments relevant to immigration detention, including the International Covenant on Civil and Political Rights and the Migrant Workers Convention.18 [32] After considering the documentary evidence, I find that the Appellant is likely to face indefinite detention if he returns to the UAE without legal status. I find that indefinite detention in these circumstances constitutes cruel and unusual treatment and punishment. No state protection or internal flight alternative (IFA) [33] As the Appellant fears being detained by the state, who is in control of the entire country, I find that the Appellant does not have access to state protection or a viable IFA. CONCLUSION [34] I find that, on a balance of probabilities, if the Appellant were to return to the UAE, he would be subjected personally to a risk of cruel and unusual treatment or punishment pursuant to paragraph 97(1)(b) of the IRPA. [35] I allow the appeal. I find, on a balance of probabilities, that the Appellant faces a risk of cruel and unusual treatment and punishment in his former habitual residence of the UAE. I find that he is a person in need of protection pursuant to paragraph 97(1)(b) of the IRPA. (signed) L. Krajcovic L. Krajcovic February 21, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at paras. 70, 103. 2 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 9, para. 33. 3 Ibid., at p. 8, para. 27. 4 Transcript of January 30, 2020 RPD Hearing, at pp. 17-18. 5 Ibid., at p. 18. 6 Ibid., at p. 19. 7 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 168. 8 Ibid., at pp. 170-171. 9 Ibid., at p. 174. 10 National Documentation Package (NDP) for United Arab Emirates (UAE) (March 31, 2020), item 2.1: United Arab Emirates. Country Reports on Human Rights Practices for 2019, United States. Department of State, 11 March 2020, at p. 23. 11 Ibid., item 14.2: Palestine and United Arab Emirates: residence status of stateless Palestinians, including access to employment, education, health care and other services, and the ability to travel in and out of the country; the requirements and procedures to renew residence status; treatment of stateless Palestinians whose residence status has expired (2015-November 2017), Immigration and Refugee Board of Canada, Response to Information Request ZZZ106014.E, 24 November 2017, at pp. 8-9. 12 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 183. 13 Ibid., at p. 185. 14 Ibid., at p. 183. 15 NDP for UAE (March 31, 2020), item 2.1, supra, footnote 10, at p. 3. 16 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 168. 17 Ibid., at p. 177. 18 Ibid., at p. 171. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-09531 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français